Cathrine Matika v Central Africa Building Society & Chief Designated Agent

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/MC/40/2013
HARARE, 15 MARCH 2013 &
CASE NO LC/CON/MC/14/2012
8 NOVEMBER 2013
---------




IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO LC/MC/40/2013

HARARE, 15 MARCH 2013 &			 CASE NO LC/CON/MC/14/2012

8 NOVEMBER 2013

In the matter between:-

CATHRINE MATIKA					APPLICANT

Versus

CENTRAL AFRICA BULDING SOCIETY		1ST RESPONDENT

And

CHIEF DESIGNATED AGENT				2ND RESPONDENT

Before The Honourable L Kudya	:	Judge

For the Applicant		T Chivale (Legal Practitioner)

For the Respondents		C Kwaramba (Legal Practitioner)

KUDYA J:

This matter was set down as an application for condonation of late noting of an appeal and stay of execution of an National Employment Council (“NEC”) award which confirmed the dismissal of the Applicant (“employee”) from the Respondent’s (“employer”)’s employment on allegations of contravening the employment Code of Conduct.

On the date of hearing 15 March 2013, the Applicant’s counsel indicated that he had just assumed agency on the matter. He thus requested that the matter be postponed to a later date to allow him the chance to file his client’s heads of argument on the application. The postponement request was consented to by the Respondent’s counsel. The matter was accordingly postponed on the terms that judgment was reserved on the matter, which judgment would be written on the basis of the heads to be filed later by the Applicant and the Respondents’ heads which were already in the record by the set down date.

It was further agreed that the Applicant’s heads would be filed by 20 March 2013 a date by which also both parties would have filed with the court, a joint memo indicating whether or not they needed to make oral submissions before the delivery of judgment on the matter. The record was consequently filed with the Registrar pending compliance by both counsels with the postponement terms on the matter.

Nothing was heard of the matter until 31 October 2013 when the Registrar discovered after receiving a letter dated 25 October 2013 from the Respondents’ counsel enquiring about the judgment on the matter, that the Applicant’s heads were indeed on file stamped 20 March 2013 but no memo indicating whether oral submissions needed or not was in the record. It is only then that the record was brought before me to deal with the judgment.

In view of the fact that the memo on the oral submissions is not on the record, the Court takes it that judgment has to be based on the papers filed of record. It is in the light of these papers that the instant judgment was therefore written.

The facts of the case are that, when the Applicant was dismissed, she mounted her appeals with the last one being at N.E.C. All the appeals were unsuccessful at all the levels.

The N.E.C appeal was dated 17 May 2012 but the Applicant says she only received it on 18 June 2012 citing postal challenges in relation to her timeous receipt of the determination. On 4 July 2012 she then filed with this Court an application for condonation of the late noting of an appeal. The Respondent opposed the application on the basis that it has no merit and that the Applicant had failed to proffer a reasonable excuse why she had to appeal outside the time lines provided by the rules.

The law on condonation is clearly set out in the case of Jenson vs Acavalos 1993 (1) ZLR 216 (SC).

Applying the principles set out in the above case to the facts of the instant case, a reading of the quoted dates would show that if the Applicant received the order on 18 June 2012 as she says and she made instant application on 4 July 2012 she was still well within her time limits to lodge her appeal with the Labour Court.

The law stipulates that the date of noting of the appeal is counted from the date of the receipt of the award and not the date on which it was made. If that is the case then there was no need to make the instant application as the applicant could still have noted her appeal without going through this application.

From the Respondent’s response there is nothing cogent on its opposition on the issue of the dates except its conclusion that it believes that the Applicant got the award either on the date it was handed down or on a  date earlier than 18 June 2012 otherwise there would be no need to apply for condonation.

Whilst the conclusion drawn by the Respondent on that point could be merited, the Applicant’s conduct can also be explained to be a clear misunderstanding of how to read the time frames viz date of judgment and date of receipt of the judgment.

In the light of the above, nothing would be lost by accepting the misunderstanding by the Applicant. As at date of this ruling the Applicant would be out of time for filing of the appeal and this order may assist her to proceed with the filing of her appeal without starting all over again to seek condonation as she surely as of now she indeed is out of the appeal time lines.

On the prospects, the facts speak to clear negligence on the Applicant’s part but since she mentions as a fact that the thief accessed the money using duplicate keys and since no evidence on the record shows that that element was investigated, it would be in the interests of justice that such an issue be looked at by the fresh eye of the appellate court. The Court is therefore satisfied that justice would be done by allowing the Applicant to have her appeal noted and decided on the merits. The application succeeds to that extent.

IT IS ORDERED THAT

The application for condonation for late filing of an appeal being with merit, it be and is hereby allowed.

The Applicant is allowed to file her appeal with the Labour Court within thirty days of the receipt of this judgment.

Costs would be in the cause.

L KUDYA

JUDGE – LABOUR COURT

James Makiya- Applicant’s Legal practitioners

Mbidzo Muchadehama & Makoni- Respondents’ Legal Practitioners